State v. Ross

No. 94-192
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
v.
MICHAEL HAROLD ROSS,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Craig Shannon, Public Defender's Office,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Patricia
Jordan, Assistant Attorney General, Helena, Montana
Robert L. Deschamps, III, County Attorney; Betty
Wing, Deputy County Attorney, Missoula, Montana

?.,
: i) Submitted on Briefs: December 8, 1994
~, p
Decided: January 24, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Michael Harold Ross (Ross) appeals his conviction of intimida-

tion, in violation of 5 45-5-203, MCA, in the Fourth Judicial

District Court, Missoula County. We affirm.

The issues are:

1. Is § 45-5-203, MCA, unconstitutionally overbroad on its

face?

2. Is 5 45-5-203, MCA, unconstitutional as applied to Ross?

3. Did the District Court err in instructing the jury

concerning the term "threat" as used in 5 45-5-203, MCA?

4. Is there sufficient evidence to support the jury verdict?

5. Did the District Court err in denying Ross's proposed jury

instruction on stalking as a lesser included offense?

6. Did the District Court err in denying Ross's motion to

bifurcate the trial and deliberate element #l and element #3 of

5 45-5-203, MCA, separately?

Ross is a resident of Missoula, Montana. Ross disagrees with

abortion and is an outspoken "right to life" advocate. Between

February 16 and April 9, 1993, Ross sent a series of letters to Dr.

Susan Wicklund. Wicklund owns and operates Mountain Country

Women's Clinic, a medical clinic in Bozeman, Montana. Part of

Wicklund's medical practice includes performing abortions.
Ross sent Wicklund in excess of sixty letters in 1993. The

letters described, in graphic terms, an abortion procedure. Ross

referred to Wicklund as "mass murderer," "butcher," and "ethnic

cleanser." He continually told Wicklund that he would shut her

2
down or die trying. Ross stated that Wicklund should be torn limb

from limb, have her head crushed, and that she should suffer all

the pain and torture she had inflicted on defenseless babies.

The day after the 1993 murder of Dr. Gunn, a Florida physician

who performed abortions, Ross sent Wicklund a letter stating: "Too

bad about Dr. Gunn in Florida. I wonder, could it happen in

Bozeman? I wonder .'I Then, shortly after the 1993 fire at

the Blue Mountain Clinic, a women's health care facility in

Missoula, Montana, Ross wrote a letter stating:

Isn't that just horrible how someone torched Blue
Mountain Clinic in Missoula? Isn't that awful? Tsk.
Tsk. Do you think it could happen in Bozeman? DO you
think such a horrible thing could happen in Bozeman?
What do you think? One thing is for sure: WE WILL SHUT
YOU DOWN.

Wicklund testified that she experienced great fear and anxiety

as a result of these letters. She employed a security guard to

patrol the clinic and act as her personal escort. She purchased a

bullet-proof vest and a handgun. She experienced mood swings and

became increasingly upset upon the receipt of each subsequent

letter. She changed her daily routine and was afraid to appear in

public.
Other clinic employees testified to the change in Wicklund's

demeanor. These employees observed Wicklund's behavior before and

after receiving the letters from Ross. They testified that the

letters upset Wicklund very much. She would often wait until the

end of the day to read the letters because they were so disturbing.
One clinic employee testified that "[Wicklund] would get red in the

face and her eyes would start to water. [The letters] were very

3
clearly upsetting to her. It was almost as if she would stop

breathing after she read them." The employees testified that the
entire atmosphere at the clinic worsened after Wicklund began

receiving the letters from Ross.

Ross did not try to conceal his identity. He signed all the

letters and subsequently admitted that he wrote them. Prior to
being charged, he voluntarily answered questions for Missoula law

enforcement officers. The letters were the sole source of contact
between Ross and Wicklund.

On April 16, 1993, the Missoula County Attorney filed an

Information charging Ross with intimidation, in violation of § 45-

5-203, MCA. Ross pled not guilty. On November 5, 1993, Ross was

found guilty of intimidation following a trial by jury. He was

given the maximum statutory sentence of ten years in the Montana

State Prison and designated a dangerous offender. Ross appeals his

conviction.

Issue 1

Is 5 45-5-203, MCA, unconstitutionally overbroad on its face?

Ross claims that 5 45-5-203, MCA, is overbroad on its face and

therefore in violation of the United States Constitution. Ross

argues that, regardless of how this statute is applied to him, the

statute could be applied to prohibit a variety of protected speech

in violation of the First Amendment. He claims that since the

statute could potentially prohibit protected speech as well as

unprotected speech, it is overbroad on its face.

4
 At the outset, we note that statutes are presumed to be

constitutional and we adopt statutory construction which renders

them constitutional rather than a construction which renders them

invalid. Montana Automobile Association v. Greely (1981), 193

Mont. 378, 382, 632 P.Zd 300, 303. Statutes should be read as a

whole and should be construed by this Court to further, rather than
to frustrate, the legislature's intent. McClanathan v. Smith

(1980), 186 Mont. 56, 61-62, 606 P.2d 507, 510.

Generally, an individual cannot challenge the constitutional

ity of a statute unless he or she claims that his or her rights

have been personally violated. This is because one must have
standing to bring a case before the court. One exception to the

standing requirement is that an individual may challenge a

statute's constitutionality on the grounds that it violates the

free speech provision of the First Amendment to the United States

Constitution. Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct.

2908, 37 L.Ed.2d 830. In Broadrick, the United States Supreme

Court stated:

[Flacial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a
limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to
sanction moves from "pure speech" toward conduct and that
conduct--even if expressive--falls within the scope of
otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls
OVSif harmful, constitutionally unprotected conduct.
Although such laws, if too broadly worded, may deter
protected speech to some unknown extent, there comes a
point where that effect--at best a prediction--cannot,
with confidence, justify invalidating a statute on its
face and so prohibiting a State from enforcing the
statute against conduct that is admittedly within its
power to proscribe. [Citation omitted.1 To put the

5
 matteranother way, particularly where conduct and not
merely speech is involved, we believe that the over-
breadth of a statute must not only be real, but substan-
tial as well, judged in relation to the statute's plainly
legitimate sweep.

Broadrick, 413 U.S. at 615. Broadrick dealt with expressive

conduct which is protected under the First Amendment. The
requirement that the overbreadth of a statute must be real and

substantial has subsequently been applied to statutes regulating

pure speech, as well. New York v. Ferber (1982), 458 U.S. 747, 102

S.Ct. 3348, 73 L.Ed.2d 1113.
When the overbreadth of a statute is not substantial and real,

the statute is not unconstitutional on it face, but rather

unconstitutional application of the statute should be dealt with on

a case-by-case basis. Ferber, 458 U.S. at 772. A statute which on

its face appears to be overbroad may still be held constitutional

if it is given a limited construction by the appellate court.

Ferber, 458 U.S. at 769.

In State v. Lilburn (1994), 265 Mont. 258, 875 P.2d 1036,
cert. denied, U.S. ~, 63 U.S.L.W. 3514 (1995), we adopted

the United States Supreme Court's overbreadth analysis in determin-

ing that Montana's Hunter Harassment statute was constitutional

In Lilburn, we stated:

Lilburn contends that there are a significant number
of situations where the law could be applied in an
unconstitutional manner and urges the Court to "use our
imagination to think of the various ways the statute
might be applied against speech or expressive conduct."
However, the test is not whether hypothetical remote
situations exist, but whether there is a significant
possibility that the law will be unconstitutionally
applied. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

6
Lilburn, 875 P.2d at 1043. In finding the Hunter Harassment

statute constitutional, we went on to conclude that "whatever
overbreadth may exist should be cured through case-by-case analysis

of the fact situations where the statute is assertedly being

applied unconstitutionally." Lilburn, 875 P.2d at 1044.

In 1983 the United States Ninth Circuit Court of Appeals held

the 1981 version of § 45-5-203, MCA, unconstitutionally overbroad

in Wurtz v. Risley (9th Cir. 1983), 719 F.2d 1438. The Ninth

Circuit stated that the statute as it existed at that time was

overbroad in that, absent a limiting construction by the Montana

Supreme Court, it did not require that the threat be made in such

a way that the victim would reasonably fear that the threat would

be carried out. Wurtz, 719 F.2d at 1441. The Ninth Circuit also

found subsection cc), a threat to without lawful authority "commit

any criminal offense," to be overbroad in that it could reasonably

be applied to many very minor, victimless crimes. Wurtz, 719 F.2d

at 1442.

In 1985 the Montana Legislature, in direct response to the

Wurtz decision,l amended § 45-5-203, MCA, as follows:*

1 The preamble to the 1985 bill which amended § 45-5-203,
MCA, clearly indicates that the amendments were made in order to
rectify the constitutional shortcomings of the statute. The
preamble states, in part:

WHEREAS, the language in section 45-5-203, MCA, is not
narrowly drawn to punish only those threats that have a
reasonable tendency to produce or instill fear in the
victim, which threats traditionally have been punishable;
and

WHEREAS, in Wurtz v. Risley, 719 F.2d 1438 (9th Cir.
1983), the U.S. Ninth Circuit Court of Appeals held that
7
 (a) inflict physicaiharm on the person threatened or any

any person to physical confinement or
restraint; !$J$j

subsection 45-5-203(l) cc), MCA, is aimed at "pure speech"
rather than conduct; has an overbreadth that is real and
substantial in relation to the statute's legitimate
sweep; has a chilling effect forbidden by the first
amendment of the U.S. Constitution; and, in the absence
of any narrowing construction or tightly drawn language,
is void on its face for overbreadth; and

WHEREAS, in its holding in Wurtz v. Risley, the court
said that the statutory language of subsection 45-S-
203(l) Cc), MCA, applied so broadly to threats of minor
infractions, threats not reasonably likely to induce a
belief that the threats would be carried out, and threats
unrelated to any induced or threatened action, that a
great deal of protected speech was brought within the
statute; and

WHEREAS, the court in Wurtz v. Risley did not address the
issue of overbreadth in the remainder of section 45-5-
203, MCA, but in its dicta said that a threat must be
distinguished from what is constitutionally protected
speech, and that threats punishable without violation of
the first amendment must contain the reasonable tendency
that the threat will produce or instill in the victim
fear that the threat will be carried out; and

WHEREAS, section 45-s-203, MCA, may contain language that
defines elements of the offense of intimidation so that
the statute applies too broadly or infringes on protected
speech.

THEREFORE, the Legislature of the State of Montana finds
it appropriate to amend section 45-5-203, MCA.

' Shaded text was added and interlineated text was deleted
from § 45-5-203, MCA, by the 1985 Montana Legislature.

8
 o r w1t:w

The 1985 Legislature severely limited what types of threats would

constitute intimidation and under what circumstances such threats

must be made

Ross argues that while these amendments were a step in the
right direction, they did not completely cure the constitutional

infirmities in the statute. Ross insists that the problems the

Wurtz court found with subsection ic), that a defendant could be

convicted of felony intimidation for merely threatening to perform

a misdemeanor, still exist in subsection (a). He claims that a

defendant can be convicted of felony intimidation under subsection

(a) for threatening to perform a misdemeanor assault. This

argument is based on the fact that subsection (a) uses the term

"physical harm" rather than "serious bodily injury" as set out in

the felony assault statute. Physical harm could include such minor

injuries as those punishable by misdemeanor assault. Ross argues

that to punish the threat to commit an act more severely than the

act itself has a chilling effect on speech about which the Wurtz

court was concerned.

We find Ross's argument unpersuasive. The Wurtz court was

concerned that the threat to commit minor victimless crimes could

be punishable as felonies under § 45-5-203(l) (c), MCA. The United

States Ninth Circuit Court of Appeals stated:
[I]t was the breadth of this provision, applying as it
does to minor crimes without victims, that caused a
federal court to strike down an identical statute in
Landrv v. Dalev, 280 F.Supp. 938, 964 (N.D.111. 1968)

9
 (three judge court), rev'd on other qrounds sub nom.
Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d
696 (1971) .

.

[Section 203(l) (c)l would also apply to the citizen
who tells city council members that if they fail to lower
parking fees she will park without putting a coin in the
meter. Threats of sit-ins, marches in the street, mass
picketing and other such activities are frequently
threats to commit acts prohibited by law.

Wurtz, 719 F.2d at 1442. The examples set out in Wurtz are

distinguishable from the hypotheticals proposed by Ross.

Subsection (a), by its very terms, proscribes threatening to

commit a crime which has a victim. Ross has not provided compel-

ling examples of how subsection (a) could chill protected speech,

as it merely prohibits one from threatening to "inflict physical

harm." Such speech is rarely, if ever, protected. Landrv, 280

F.Supp. at 963-64 (concluding that similar language in an Illinois

statute was neither vague nor overbroad).

Ross has failed to show substantial and real overbreadth, when

compared to the statute's plainly legitimate sweep. See Lilburn,

875 P.Zd at 1043. Ross has provided no compelling examples of how

§ 45-s-203, MCA, can be applied unconstitutionally. Conversely,

§ 45-5-203, MCA, clearly has a wide variety of constitutional

applications. We conclude that 5 45-5-203(l) (a), MCA, is not

unconstitutionally overbroad and any purported unconstitutional

application of this section should be addressed on a case-by-case

basis

10
 Issue 2

IS § 45-5-203, MCA, unconstitutional as applied to Ross?

Ross claims that § 45-5-203, MCA, is unconstitutional as
applied to him. He argues that the letters he wrote to Wicklund

were not communicated under circumstances which reasonably tended

to produce fear that any threats would be carried out. The amended
version of 5 45-5-203, MCA, requires that threats be made under

such circumstances.

The prosecution presented evidence elaborating on the hostile

and dangerous nature of the abortion debate raging in this country.

Wicklund testified that she was aware of the violence which

surrounds the abortion issue. She was aware of the burning of the

Blue Mountain Clinic in Missoula, Montana, the murder of Dr. Gunn

in Florida and other acts of violence allegedly performed by "pro-

life" activists. She testified that she was personally the victim

of previous violent altercations.

The letters from Ross were written expressly for the purpose

of persuading Wicklund to stop performing abortions. Ross

continually stated, I' [w]e will shut you down." Ross stated that

Wicklund should be torn limb from limb and suffer a variety of

other horrible injuries.

Ross's letters became the most threatening when he referred

Wicklund to other acts of violence purportedly carried out in the

name of the "pro-life" movement. Ross wrote to Wicklund, ' ttloo

bad about Dr. Gunn in Florida. I wonder, could i.t happen in

11
Bozeman? I wonder . .'I Then, in a subsequent letter he

wrote:

Isn't that just horrible how someone torched Blue
Mountain Clinic in Missoula? Isn't that awful? Tsk.
Tsk. Do you think it could happen in Bozeman? Do you
think such a horrible thing could happen in Bozeman?
What do you think? One thing is for sure: WE WILL SHUT
YOU DOWN.

In the context of the abortion debate in this country, with which

Ross and Wicklund were both clearly familiar, these letters

constitute threats communicated under circumstances which reason-

ably tended to produce fear that they would be carried out.

Ross's letters expressed more than his political or moral

opposition to abortion. The majority of the letters were directed

at Wicklund personally. They were written to frighten her. We

discussed similarly threatening speech in State v. Lance 11986),

222 Mont. 92, 721 P.2d 1258, and concluded that the State had a

substantial interest in protecting society from such speech while

the benefits derived from such speech were minuscule. Lance, 721

P.2d at 1266. We went on to state:

This type of speech is so inimical to society and plays
such a minimal part in the exposition of ideas that the
State may constitutionally prohibit it. An individual
cannot be permitted to terrorize members of the public
through threats, and then claim protection from prosecu-
tion under the First Amendment. Freedom of speech was
never meant to be stretched to the point where more
injury is done to society as a whole than good.

Lance, 721 P.2d at 1267.

The totality of Ross's letters, taken in the context in which

they were written, constitute threats to commit homicide and arson.

12
We conclude § 45-s-203, MCA, is constitutional as applied to Ross
as his letters were not protected speech under the First Amendment.

Issue 3
Did the District Court err in instructing the jury concerning
the term "threat" as used in § 45-5-203, MCA?
Ross claims that the District Court erred by refusing his
proposed jury instructions A-l and A-10 while accepting the
prosecution's proposed jury instruction J. Ross claims that the
instructions given by the District Court combined and blurred two
distinct elements of 5 45-s-203, MCA, ultimately confusing the
jury's deliberation.
We review jury instructions in a criminal case to determine
whether the instructions, as a whole, fully and fairly instruct the
jury on the law applicable to the case. State v. Brandon (1994),
264 Mont. 231, 237, 870 P.2d 734, 737. The district court is given
broad discretion in instructing the jury and while the defendant is
entitled to have instructions on his theory of the case, he or she
is not entitled to an instruction concerning every nuance of his or
her argument. State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351.
Ross's proposed jury instruction A-l read as follows:
In determining whether Mr. Ross, in fact, communicated a
threat, the question is not whether one could reasonably
interpret Mr. Ross' letters as threats. Rather, the
question is whether the letters on their face and in the
context in which they were conveyed, in fact, constitute
true, unambiguous, unconditional and specific threats.
"Threatening" language is not necessarily punishable.

13
The District Court refused this instruction because it found that

the phrase "in fact, constitute true, unambiguous, unconditional

and specific threats" was not proper. This language was dicta from

a federal case interpreting a federal statute and has not been

adopted in Montana. In response to ROSS'S argument that this was

a proper instruction, the District Court stated:

No, sir, that is not. That is dicta. That is not the
l a w . That is based on a federal statute, [COW-
sell . That has nothing to do with Lance when they talk
about it.
The District Court also refused Ross's proposed jury instruc-

tion A-10, which states:

In determining whether Mr. Ross intended to communi-
cate a I' true threat," you must apply an objective
standard and determine whether on its face & on the
circumstances in which it is made, the speech is so
unequivocal, unconditional, immediate and specific as to
the person threatened, as to convey a gravity of purpose
and imminent prospect of execution.

In other words, you must consider what he said and
where he said it, the circumstances in which it was said.

In place of Ross's proposed instructions A-l and A-10, the

court instructed the jury as follows:

In determining whether Mr. Ross intended to communi-
cate a threat, the question is not whether one could
reasonably interpret Mr. Ross' letters as threats.
Rather, the question is whether the letters on their face
and in the context in which they were conveyed, in fact,
constitute true threats. "Threatening" language is not
necessarily punishable.

Implicit in the word "threat," as used in the
intimidation statute, is a requirement that it be
communicated under circumstances which reasonablytendto
produce a fear that the threat will be carried out.

Only serious expressions of an intention to take a
hostage, murder, inflict serious injuries on persons or
property, or commit a felony, for the purpose of accom-
14
 plishing some end constitute a threat punishable under
the statute.

The question of intention is to be decided on the
basis of an objective standard, and whether a statement
constitutes a true threat is to be determined by the
trier of fact, you the jury.

Ross contends that this instruction confuses what constitutes a

"true threat," which must be determined by an objective standard,

with whether or not the threat was communicated under circumstances

which reasonably tend to produce fear, which must be determined by

a subjective standard. We disagree. The instruction given by the

District Court, when viewed in light of all the other instruc- r

tions,3 was a correct statement of law. The jury was instructed

on the elements and requirements necessary for language to be a

"true threat." The jury was also instructed on the requirement

that the threats be communicated in a manner which reasonably tends

to produce fear in the victim. The fact that these two concepts

were addressed in the same jury instruction does not render the

instruction unduly confusing or misleading.

Ross also argues that the District Court erred in denying his

proposed instruction A-10 because he believes the jury should have

been instructed that, for Ross's letters to be considered "true

threats," Ross must have intended to carry out these threats.

Again, Ross has misinterpreted Montana law. A "true threat" must

be communicated under circumstances which reasonablv tend to

produce fear that the threat will be carried out. Lance, 721 P.2d

3 The District Court also instructed the jury concerning an
"objective" standard of review and other limitations and qualifica-
tions of what constitutes a "true threat."
15
at 1266; 5 45-5-203, MCA. Under § 45-5-203, MCA, it does not

matter whether or not the accused actually intended to carry out

the threat, only that the threat is communicated in such a way that

the victim reasonably fears that the threat will be carried out.

The only intent required is that the accused made the threat for

"the purpose to cause another to perform or to omit the performance

of any act." Section 45-s-203, MCA.

In interpreting a federal intimidation statute, the United

States Seventh Circuit Court of Appeals stated:

It also can make no difference whether the threaten-
er intends to carry out the threat. [Citation omitted.1
The argument that if there is no intent to carry through,
the threat is a pure exercise in freedom of speech is
purely verbal and misconceives the nature of threats.
When making a threat one hopes not to have to carry it
out; one hopes that the threat itself will be effica-
cious. Most threats, indeed, are bluffs. But if the
bluff succeeds in intimidating the threatened person
. . it ought to be punished . And a bluff has no
more to do with the marketplace of ideas than a serious
threat.

United States v. Valasquez (7th Cir. 19851, 772 F.Zd 1348, 1357,

cert. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986).

We conclude that it is not necessary that the accused intend

to carry out the threat; rather, it is only necessary that the

threat was made for the purpose to cause another to perform or omit

the performance of an act. We hold that the District Court

properly instructed the jury concerning interpretation and

application of 5 45-5-203, MCA

Issue 4

Is there sufficient evidence to support the jury verdict?
16
 Ross claims that there was insufficient evidence to support

the jury's verdict of guilty. The standard of review of the

sufficiency of the evidence to sustain a criminal conviction is

whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State

v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318.

Ross's insufficient evidence argument is an expansion of his

argument above, in essence that, since he never intended to carry

out his threats, the threats were not "true threats" and therefore

the statutory elements of § 45-5-203, MCA, were not met. He

insists the intent to carry out the threat must be proven. Ross

claims that in Lance this Court "explicitly adopted this objective
intent requirement to be a part of each and every prosecution under

the subject statute."

Ross's interpretation of Lance is derived from the following

passage:

[O]nly serious expressions of an intention to take a
hostage, murder, inflict serious injuries on persons or
property, or commit a felony, for the purpose of accom-
plishing some end constitute a threat punishable under
the statute. However, the question of intention is to be
decided on the basis of an objective standard, United
States v. Kelner (2d Cir. 1976), 534 F.2d 1020

Lance, 721 P.2d at 1267. From this quote Ross argues that this

Court has "explicitly adopted" the entire intent requirement found

in Kelner. Counsel has mischaracterized our holding in Lance.

Nowhere in Lance did we make proof of the accused's intent to carry

out the threat a prerequisite to a conviction under § 45-5-203,

17
MCA. As previously stated, the only state of mind required under

5 45-5-203, MCA, is that the threat be made for the purpose to

cause another to perform or omit performance of an act. There is
no indication the legislature intended to require proof of the

accused's intent to carry out the threat.

We conclude that the prosecution presented sufficient evidence

that Ross communicated "true threats" under circumstances which

reasonably tended to produce fear in Wicklund that the threats

would be carried out and the threats were communicated for the

purpose to cause Wicklund to omit the performance of an act--

specifically, performing abortions. A rationale trier of fact

could have found these elements beyond a reasonable doubt.

Issue 5

Did the District Court err in denying Ross's proposed jury

instruction on stalking as a lesser included offense?

Ross argues that he was entitled to an instruction on stalking

as a lesser included offense. Montana's stalking statute, § 45-S

220, MCA, went into effect on April 9, 1993. Ross sent fifty-nine

letters to Wicklund before April 9, 1993. Ross sent three letters

to Wicklund on April 9, 1993. These three letters were admitted

into evidence. Ross claims the three letters sent on April 9,

1993, provided sufficient evidence by which a rational trier of

fact could have found him guilty of stalking. Ross therefore

claims stalking is a lesser included offense to intimidation and

the jury should have been so instructed.

18
 In State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646, this

Court stated that a criminal defendant "is entitled to instructions

on lesser included offenses if any evidence exists in the record

which would permit the jury to rationally find him guilty of a
lesser offense and acquit him of a greater." Ostwald, 591 P.2d at

651.

Fifty-nine of the sixty-two letters which constitute the

intimidation charge in this case were written before the stalking

statute became law. Included in these fifty-nine were the two most

incriminating letters, the letter referring to the murder of Dr.

Gunn in Florida and the letter referring to the burning of the Blue

Mountain Clinic in Missoula. Since the gravamen of the offense

occurred prior to enactment of the stalking statute, Ross was not

entitled to an instruction concerning stalking as a lesser included

offense. It bears emphasizing with respect to our decision that we

are not here determining that the offense of stalking either is or

is not a lesser included offense of the offense of intimidation.

That issue remains to be decided in some future case and controver-

SY.

Issue 6

Did the District Court err in denying Ross's motion to

bifurcate the trial and deliberate element #l and element #3 of

§ 45-5-203, MCA, separately?

Ross argues that the District Court erred by allowing issue
#l, whether the letters constituted "true threats," and issue #3,

whether the threats were communicated in such a way that they

reasonably produced fear that the threats would be carried out, to

19
be tried together. Ross offered to concede issue #3 and admit that

Wicklund subjectively suffered fear and anxiety due to the letters.

By doing this, he wished to exclude all evidence concerning

Wicklund's fear and focus solely on whether or not the letters on

their face constituted "true threats."

We will not overturn a trial court's discretionary ruling

absent an abuse of discretion. In Montana Rail Link v. Byard

(1993), 260 Mont. 331, 860 P.2d 121, we stated, "[tlhe standard of

abuse of discretion is applied to discretionary rulings, such as

trial administration issues, post-trial motions and similar

rulings." Montana Rail Link, 860 P.2d at 125 (emphasis added). In

this case the jury was continually made aware of the distinctions
between the various elements the prosecution was required to prove.

The jury was properly instructed concerning the applicable law.

The District Court determined that the prosecution should be

permitted to present relevant, probative evidence to establish each

and every element of the offense charged. There is no evidence

that the jury was "confused" by the prosecution's presentation of
evidence concerning the various elements of the offense. We

conclude that it was well within the District Court's discretion to

refuse to bifurcate the trial.

Based on our holdings above, we affirm the decision of the

District Court.

Chief Justice

20
We concur: